Almy v. Thurber

New York Court of Common Pleas

Almy v. Thurber

12 Daly 3, 65 How. Pr. 481, 12 Abb. N. Cas. 459

DecidedMarch 15, 1883

StatusPublished

This text of 12 Daly 3 (Almy v. Thurber) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Almy v. Thurber, 12 Daly 3, 65 How. Pr. 481, 12 Abb. N. Cas. 459 (N.Y. Super. Ct. 1883).

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Opinion

J. F. Daly, J.

[After stating the facts as above.]—It was shown by evidence that there was an error in the statement delivered to the sheriff by defendants, by which it appeared that the charge for merchandise in their favor against the defendants in the attachment accrued after the levy; whereas, in fact, such charge accrued long prior to the' levy; and that at the date of levy, May 10th, 1881, there was but $120.95 due John Gomard & Co., the defendants in the attachment, from these defendants. Defendants were not estopped from showing such error in an [5]*5. action brought on the faith of their statement. The certificate required of a person who has property of the attachment debtor or is indebted to him, by section 650, is evidently intended as the basis of an action under sections 655 and 677 against such person by the sheriff or the plaintiff in the attachment. By section 651 it is provided that if such person refuses to give the certificate, or gives a false or insufficient certificate, he may be required to submit to an examination under oath concerning the same. A certificate voluntarily given is of no higher character than a statement under oath made upon such an examination, yet it would not be claimed that a person so examined, if mistaken in his testimony, could not correct it or show the truth when subsequently sued upon it. The object of the certificate or examination is apparent from the statute; it is to be used as evidence only; and the sheriff and plaintiff are not justified in using it for any other purpose—e.g., as a representation of fact upon which they may rely in omitting to secure the demand in suit. The certificate or examination will be prima fade evidence against the party giving it, in an action by the sheriff or the attaching creditor, but is no more conclusive than is an examination of a party in anticipation of an action under section 870 of the Code. The doctrine of estoppel applies only to voluntary representations; declarations, admissions and acts, and has not been extended, so far as I can discover, to declarations exacted by statute. A party certifying or testifying under stress of the law has not the option of speaking or holding his tongue; he is required to give testimony, and is to be indulged, therefore, as any other witness, and allowed to correct honest mistakes in his testimony when confronted -with it.

The judgment should be affirmed, with costs.

Vast Bkunt and Beach, JJ., concurred.

Judgment and order affirmed, with costs.

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J. F. Daly, J.

[After stating the facts as above.]—It was shown by evidence that there was an error in the statement delivered to the sheriff by defendants, by which it appeared that the charge for merchandise in their favor against the defendants in the attachment accrued after the levy; whereas, in fact, such charge accrued long prior to the' levy; and that at the date of levy, May 10th, 1881, there was but $120.95 due John Gomard & Co., the defendants in the attachment, from these defendants. Defendants were not estopped from showing such error in an [5]*5. action brought on the faith of their statement. The certificate required of a person who has property of the attachment debtor or is indebted to him, by section 650, is evidently intended as the basis of an action under sections 655 and 677 against such person by the sheriff or the plaintiff in the attachment. By section 651 it is provided that if such person refuses to give the certificate, or gives a false or insufficient certificate, he may be required to submit to an examination under oath concerning the same. A certificate voluntarily given is of no higher character than a statement under oath made upon such an examination, yet it would not be claimed that a person so examined, if mistaken in his testimony, could not correct it or show the truth when subsequently sued upon it. The object of the certificate or examination is apparent from the statute; it is to be used as evidence only; and the sheriff and plaintiff are not justified in using it for any other purpose—e.g., as a representation of fact upon which they may rely in omitting to secure the demand in suit. The certificate or examination will be prima fade evidence against the party giving it, in an action by the sheriff or the attaching creditor, but is no more conclusive than is an examination of a party in anticipation of an action under section 870 of the Code. The doctrine of estoppel applies only to voluntary representations; declarations, admissions and acts, and has not been extended, so far as I can discover, to declarations exacted by statute. A party certifying or testifying under stress of the law has not the option of speaking or holding his tongue; he is required to give testimony, and is to be indulged, therefore, as any other witness, and allowed to correct honest mistakes in his testimony when confronted -with it.

The judgment should be affirmed, with costs.

Vast Bkunt and Beach, JJ., concurred.

Judgment and order affirmed, with costs.

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Bluebook (online)

12 Daly 3, 65 How. Pr. 481, 12 Abb. N. Cas. 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almy-v-thurber-nyctcompl-1883.